On November 10, 2017, the New York State Department of Labor (NYSDOL) released draft regulations that would amend the rules for scheduling employees covered by the Minimum Wage Order for Miscellaneous Industries and Occupations (Miscellaneous Wage Order). Specifically, the proposed rules would revise Sections 142-2.3 and 142-3.3 of the Miscellaneous Wage Order regarding call-in pay.

Background

The Miscellaneous Wage Order applies to all New York employers, except those that are subject to other wage orders, including: (1) the New York Hospitality Industry Wage Order, which regulates restaurants and hotels, or (2) the New York Minimum Wage Order for the Building Service Industry, which covers janitors and other building service industry workers.

Under the Miscellaneous Wage Order’s existing Section 142-2.3, which regulates call-in pay practices, “[a]n employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.” A NYSDOL opinion letter states that meetings that occur less frequently than once per pay period trigger the call-in pay requirement. 

Section 142-2.3 applies to employees other than those in nonprofit institutions. A similar call-in pay provision, Section 142-3.3, applies to employees at certain nonprofit institutions.

New Triggers for Call-In Pay

If enacted, the new rules would require a covered employer to pay at least four hours of call-in pay to any covered employee:

• who, by request or permission of the employer, reports for work on any shift (Note: This payment may be reduced to the lesser number of hours that the employee normally works for that shift, as long as the employee’s total hours worked, or scheduled to work, for that shift do not change from week to week);

• whose shift is cancelled within 72 hours of the shift (Note: This payment may also be reduced to the lesser number of hours that the employee normally works for that shift, as long as the employee’s total hours worked, or scheduled to work, for that shift do not change from week to week);

• who is required to be available to report to work for any shift; and/or

• who is required to be in contact with the employer within 72 hours of the start of the shift to confirm whether to report to work. 

In addition, an employer would have to pay an extra two hours of call-in pay to any covered employee who, by request or permission of the employer, reports to work for any shift for hours that were not scheduled at least 14 days in advance of the shift.

Calculating Call-In Pay

The new regulations provide that, in calculating call-in pay, payments for time of actual attendance “shall be calculated at the employee’s regular rate or overtime rate of pay . . . minus any permitted allowances.” It also states that payments for other hours of call-in pay “shall be calculated at the basic minimum hourly rate with no allowances.” Under the proposed regulations, call-in pay “shall not be offset by the required use of leave time, or by payments in excess of those required by [the Miscellaneous Wage Order.]”

Covered Employees 

The revised rules would apply to all employees covered by the Miscellaneous Wage Order, except:

• those covered by a collective bargaining agreement that expressly provides for call-in pay;

• employees during workweeks when their weekly wages exceed 40 times the applicable basic hourly minimum wage;

• any new employee during the first two weeks of employment or any regularly scheduled employee who volunteers to cover certain shifts; and

• an employee whose shift is cancelled due to his or her request for time off or because operations at the workplace cannot begin or continue due to an act of God or other cause not within the employer’s control.

Effect on New York City’s Fair Workweek Law

The NYSDOL introduced its proposed regulations a mere two weeks before New York City’s Fair Workweek Law goes into effect. The New York City Fair Workweek Law restricts certain retail and fast food employer scheduling practices for work sites located in New York City. Because the NYSDOL regulations and Fair Workweek Law are both aimed at on-call scheduling, the NYSDOL publicly commented its belief that the call-in regulations (if adopted) would preempt the New York City Fair Workweek Law. However, it remains an open question whether the NYSDOL regulations would, in fact, preempt New York City law, or whether the NYSDOL would press that position. The NYSDOL has confirmed to us that a definitive answer on the issue will not be clear until after the 45-day comment period following the November 22, 2017 publication of the proposed regulations in the New York State Register, as described in more detail below.

As such, all retail and fast food employers covered by the New York City Fair Workweek Law may want to carefully consider compliance with the Fair Workweek Law until and unless the state regulations are definitively ruled to preempt the city law. This is especially so because the New York City law’s effective date will occur prior to adoption (if any) of the NYSDOL rules.

What’s Next?

The proposed NYSDOL rules will appear in the November 22, 2017, edition of the New York State Register and will be open to public comment for 45 days. If an employer would like to submit a comment on the proposed regulation, it may do so at by emailing hearing@labor.ny.gov. Although it is possible that the NYSDOL may amend or abandon the rules, if adopted, they will likely go into effect in early 2018. We will continue to monitor the proposed rules prior to their anticipated enactment.